A Bench of Chief Justice of India (CJ), SA Bobde and Justices AS Bopanna and V Ramasubramanian said that while the tech giant may be a company with deep coffers, people value their privacy more than money.
The arguments made by Senior Counsel Shyam Divan regarding the privacy concerns accompanying the new policy coupled with the fact that there is no data protection law in India, found favour with the Bench.
“We are impressed by Mr. Divan’s argument that it was proposed before us that a data protection law would be brought into force. Now under this policy you will share data of Indians. You may be two or three trillion companies, but people value their privacy more than money,” CJI Bobde said.
People have grave apprehension about the sharing of data, he added.
Senior Counsel Kapil Sibal, representing WhatsApp, vehemently denied that the data of users would be compromised by the new policy.
“This 2021 policy is applicable everywhere apart from Europe as it has a law. If India has a law, we will follow the same,” Sibal said.
“Then put that on oath,” the Bench responded.
“We can swear on affidavit that we neither store or share personal data. All this is a red herring,” said Senior Counsel Mukul Rohatgi.
The application by the by two college students – Karmanya Singh Sareen and Shreya Sethi was filed in their pending case before the Constitution bench where WhatsApp’s 2016 user policy was challenged.
The said decision then came to be challenged before Supreme Court since the High Court granted only partial relief.
The Supreme Court, in April 2017, referred the matter to a Constitution Bench.
Later when the Constitution Bench took up the case, it was kept pending after the Court was informed that Justice BN Srikrishna led committee was preparing a Data Protection Bill.
Subsequently, WhatsApp updated its user policy on January 4, 2021, in view of which this fresh affidavit was filed by the petitioners before the Supreme Court on January 5, 2021.
During the hearing today, Shyam Divan said that there is a great number of metadata which is shared and there is a privacy concern. He also highlighted the Centre’s earlier stand that a data protection law would be brought in.
“We pray that privacy standards are not lowered for Indian users and that they be barred from sharing data with facebook,” Divan said.
Senior advocate Kapil Sibal pointed out that similar matter is already being heard by the Delhi High Court while the challenge to the earlier policy of WhatsApp is pending before a Constitution Bench of the Supreme Court.
“We will see if we should get the Delhi High Court case transferred here (Supreme Court) or to send these there. But we will issue notice and (you) file replies. We may have to see if the matter is pending before us in a constitution bench,” the Court said.
The case will be heard next after four weeks.